Thursday, April 13, 2017

Advice to Conscientious Originalists: Rebrand

by Michael Dorf
My post on Tuesday on the stakes of the originalism debate sparked very thoughtful responses by two of the leading "new" originalists: Georgetown Law Professors Larry Solum and Randy Barnett. In a Postscript I added to update my original post, I was happy to accept fully one of Prof. Solum's points (about the use of the term "semantic originalism") and to clarify how much of the level-of-generality argument I meant to endorse. Meanwhile, Prof. Barnett zeroed in on a claim I made in both Tuesday's post and at greater length in my 2012 Harvard Law Review essay The Undead Constitution: that scholars who in good faith pursue public meaning originalism thereby provide aid and succor to judges, public officials, and pundits who misuse their work in defense of original-intentions-and-expecations originalism or worse, ideological originalism.

Well so what? Why, Prof. Barnett asks, should the fact that some actors promote bad originalism prevent scholars with integrity from pursuing good originalism? Building on Prof. Barnett's piece, Prof. Solum argues that constitutional scholars ought to be scholars first and thus our obligation as scholars to "speak the truth" should prevail over any putative obligation to avoid giving ammunition to those who would misuse it.

Here I will briefly respond to this important question that Professors Barnett and Solum raise. To summarize, my answer is that scholars who are persuaded that public meaning originalism is correct should pursue public meaning originalist scholarship but that they should give it a new name that does not include any variants of the words "originalist" or "originalism."The point of Tuesday's post was to explore the stakes of the debate over originalism, not to engage in the debate over whether originalism is correct. I treated the arguments for and against originalism and other approaches to interpreting the Constitution as largely offstage, asking why it mattered. I said that the debate over originalism matters in part because of the danger that good arguments by scholars for public meaning originalism will end up being appropriated by political actors to legitimate intentions-and-expectations originalism or, worse, what Prof. Solum calls "ideological originalism", i.e., law office history that disguises normative views in the supposedly neutral language of scholarship. I did not mean to argue--either in Tuesday's post or in any of my prior work--that the risk of appropriation, standing alone, suffices either to discredit public meaning originalism or to give people who think that public meaning originalism is, all things considered, best that they ought not write originalist scholarship because of the real-world harm to which such scholarship might lead.

Accordingly, I am not sure that I deserve Prof. Solum's generous praise for staking out a "refreshing and brave" position. I did not think that I was addressing the question of what scholars who think originalism is correct ought to do, except perhaps in a few special cases, like the late Ronald Dworkin and Professor Jack Balkin. In his Comment in Justice Scalia's book, A Matter of Interpretation, Prof. Dworkin wrote that he accepted semantic originalism but argued that while Scalia purported to accept it as well, in practice Scalia was inconsistent, sometimes acting on intentions-and-expectations originalism instead. (pp. 120-22). In his own book Freedom's Law, Prof. Dworkin called semantic originalism "innocuous." (p. 291). Meanwhile, as I noted on Tuesday and at length in The Undead Constitution, Prof. Balkin has made quite a splash by arguing that, properly understood, public meaning originalism is equivalent to living constitutionalism.

My contention that the prestige of original meaning originalism could be used to validate the older less defensible version of originalism to which public officials, many judges, and pundits subscribe was directed at scholars like Dworkin and Balkin--i.e., scholars who accept what Prof. Solum characterizes as the thesis that public meaning originalism and living constitutionalism are substantially equivalent. That may be, I meant to be telling them, but by calling living constitutionalism--which you think is correct--a version of originalism, you undermine living constitutionalism in the real world. To be clear, I was not urging the likes of Balkin or those who would follow in Dworkin's path to change their substantive views. Rather, I was urging them simply not to characterize those views as originalism because of the collateral consequences of doing so.

Upon reflection on what Profs Barnett and Solum have said, I am prepared to extend my caution to them and to others who reject the thesis that originalism and living constitutionalism are substantially equivalent. Notwithstanding their rejection of that thesis, these scholars also have reason to worry about the misuse of their scholarship in public debate. I agree with Prof. Solum that this is not a reason to abjure public meaning originalist scholarship, but it is a reason to call their approach something new that is not easily confused in public debate with intentions-and-expectations originalism or with ideological originalism.

Consider an admittedly imperfect analogy. Economists who follow Karl Marx in adopting a labor theory of value or in other ways but do not share the political ideology of communism typically call themselves "Marxians" to distinguish their views from the views of political "Marxists." The impulse is sensible but, as I said, the analogy is imperfect for three reasons.

First, the need to distance oneself from real-world political communism is stronger than the need to distance oneself from real-world intentions-and-expectations or ideological originalism because the former has a much worse track record than the latter: regimes calling themselves Marxist killed tens of millions of people and immiserated hundreds of millions, whereas intentions-and-expectations or ideological originalism has led to some bad Supreme Court decisions.

Second (and cutting in the opposite direction), the influence of Marxian economists on the real world is negligible. Marxian economists rebranded to avoid the taint of Marxism. By contrast, it is at least arguable that academic public-meaning originalism has played some substantial role in propping up real-world intentions-and-expectations originalism and ideological originalism.

Third,"Marxian" is a terrible rebranding because it is too similar to "Marxist." Thus, I urge scholars who wish to distinguish their brand of public-meaning originalism from intentions-and-expectations originalism and ideological originalism to choose a label that contains no variants of the root "original." I have no expertise in marketing, so I won't offer particular suggestions. Maybe Prof. Barnett or Prof. Solum or some other public-meaning originalist can sponsor a public contest?!

That is really all I want to say by way of clarification of my Tuesday post, but, inspired by the observations of Profs. Barnett and Solum, I do want to add a few words about the broader problem that they (very generously) credit me with (inadvertently) raising. Because I believe that rebranding suffices to address the problem of what we might call stolen credibility in the originalism debate, there is no need to confront a harder case in which a disclaimer might be insufficient. But that is not to say that harder cases might not exist.

Such cases are easiest to identify in the pure and applied natural sciences. If you think it likely that your scientific work will likely lead to the creation of a weapon that will be used for evil purposes, you might reasonably treat that fact as a sufficient reason to pursue a different line of work. To be sure, that would not necessarily be problematic. Prof. Solum writes: "Truthfulness is a virtue, and the virtue of truthfulness is especially important for scholars. Academic institutions, especially research universities, have a social obligation to pursue the truth." Quite right. But a scientist who pursues one line of research rather than another does not violate academic values, so long as she pursues the line of research she chooses with integrity, even if the motive for pursuing this rather than the other line of research was to avoid doing harm in the real world.

Are there cases in which a scholar would be justified in lying about her findings? In extremis, yes. Consider Werner Heisenberg, who was a key player in the unsuccessful Nazi program to build a nuclear bomb. According to one hotly contested account, Heisenberg deliberately sabotaged the program in order to deny Hitler the bomb. If so--and even if doing so involved knowingly publishing false findings--that strikes me as morally justified, indeed as probably even morally required. But that is an admittedly extreme example that fulfills Godwin's Law. Whether it is possible to conceive of a more realistic and mundane one I leave for others.

22 comments:

Larry Solum at his Legal Theory Blog in his post on Randy Barnett's critique of Mike's earlier post utilized the phrase "noble lie" to which perhaps this current post of Mike's is a response, although Mike does not refer directly to the "noble lie" phrase.

Those who follow the Originalism Blog are well aware of the many variations under the originalism umbrella. And all originalists who claim New Originalism are not necessarily in full agreement with each other. Is it clear that ideology is not involved with the New Originalism? Some detect a faith-based New Originalism. Solum's use of the phrase "noble lie" was a misuse of that phrase in his effort at advocacy of the originalism he embraces. Academic scholars may differ on what what constitutes truth and objectivity.

“The word Fascism has now no meaning except in so far as it signifies "something not desirable"...In the case of a word like democracy, not only is there no agreed definition, but the attempt to make one is resisted from all sides. It is almost universally felt that when we call a country democratic we are praising it: consequently the defenders of every kind of regime claim that it is a democracy, and fear that they might have to stop using the word if it were tied down to any one meaning.” ~George Orwell

We all remember when it was permissible to say "liberal." But it was bent, folded, spindled, and mutilated by opponents to the point where the old "liberal" is now a "progressive." And their enemies are assaulting the new term.

By the same token, the word "originalism" has been been sodomized by its opponents, who have transmogrified it into a caricature of itself. You either stand and fight or be prepared to keep moving.

Larry Solum at his Legal Theory Blog has posted at 10:52 AM an extensive response to Mike's post. Much is repetitive of earlier posts of Solum. Note Solum's closing paragraph with its attempt at sarcasm. Apparently Solum prefers the originalism umbrella even though he may disagree with many of the originalists standing under it with him.

This inter-professorial debate goes over my head, but am wary of trying to True Scotsman "originalism," a term with a protean quality. If the concern is that it will be misused for ideological reasons or something, that's a feature, not a bug, isn't it?

Prof. Solum's follow-up post seems to have completely misunderstood my Heisenberg example--which was to show that one needs a very extreme situation to justify lying in scholarly work. He takes me as comparing originalism with nuclear weapons and Hitler, when I was (I would have thought quite obviously) doing the exact opposite.

The foundation of originalism was stated by Abraham Lincoln: “ "no man is good enough to govern another man, without the other’s consent.” Simply put, COTUS is the outer limit of my consent.

COTUS is a third-party beneficiary contract creating an express and limited agency. Thereunder, it is acknowledged that rights belong to the individual. Some of these rights are knowingly ceded and other obligations accepted in exchange for a portfolio of civil rights: procedural remedies, intended to protect the rights we retain. And as is the case with more mundane contracts, the words have the meaning the original parties ascribed to them.

The non-originalist has to come up with a paradigm that I would consent to, or more practically, that the Framers would. And that is a heavy lift, in light of the fact that the Framers entrusted the judiciary with the judicial Power, and none other.

The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves. ~James Madison, Memorial and Remonstrance (Jun. 20, 1785)

Llewellyn writes that judges manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach. Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133. Not sure that any iteration of non-originialism can protect me from that.

I read Prof. Solum's post, and he is simply objecting to your use of WW2 Germany as any kind of example, and likely to be misunderstood for emotional reasons. That he also somewhat misunderstood your example is reason enough to believe that he is correct.

His larger point that it's impossible to distinguish bad originalists if we start by defining originalists as being bad is an interesting one.

Could I pose a question? Let's say I stipulate that it's bad to foster original-intentions/expectations originalism, for whatever reasons you think it's bad, and that it's perfectly appropriate to, at least, relabel one's own theory, even if the new label will be less felicitous or accurate, in order to avoid the collateral consequences of bolstering some "bad" theory. (I'm not sure about either of these premises.) Might it not, though, be the case that as far as opposing original-intentions originalism goes, the more productive way for a public-meaning originalist to do so is to argue that his theory is the best version of originalism and that other versions are worse and wrong, rather than to relabel his theory and cede the originalist field completely to original-intentions/expectations originalism? You would agree, I assume, that originalism is and will be, in at least the near future, a very popular label and that it has great appeal independent of whether a small cohort of academics use it, and that Solum and Balkin and others relabeling their theory as something else will not cause originalism to collapse in judicial or political circles. Rather, I think that relabeling would very likely be interpreted by less academically inclined people as a signal that they were never "real" originalists and that the true originalism was intentionalist originalism all along.

On the other hand, if people like Solum continue to contest the meaning of this very popular label within originalist circles, though, I think they'll continue to win and very possibly eventually redirect judicial and lay understandings of originalism. There are very few academic original-intentions originalists these days, and even leading originalist judges don't talk about original intentions anymore (Scalia didn't), so I would think that over time their understanding of originalism will become the prevailing one, even to relatively sophisticated laypersons on the Senate Judiciary Committee. And beyond that circle, I'm not sure how much it matters if originalism is popularly misunderstood. I suppose one might say that original-intentions originalism has a lot to do with the Tea Party movement and the like, but I don't see that people like Solum have any impact on them. It seems to me that it's in the nature of folk understandings of language and the law that a sizable contingent of people will always believe the law should be interpreted in accord with the intentions of its authors and that it's not remotely plausible to suggest that this would change if people who advance a different theory in academic writings changed the label of their theory so it wouldn't be confused with a like-labeled intentionalist theory. Perhaps original-intentions originalism requires *some* amount of popularizing in order to thrive popularly, but as long as there are people like Ted Cruz and talk radio hosts who talk about the Constitution, I think you'll always have the requisite amount of popularization and that academic relabeling would change nothing on that level of discourse.

I do not think the following is generally true: “Economists who follow Karl Marx in adopting a labor theory of value or in other ways but do not share the political ideology of communism typically call themselves ‘Marxians’ to distinguish their views from the views of political ‘Marxists.’” Please see my post here: http://www.religiousleftlaw.com/2017/04/marx-marxists-marxians-and-democratic-socialism.html

Assuming Mike's rebranding suggestion was serious and not an effort at "pulling my leg" as suggested by Larry Solum, perhaps some viewers of this Blog might come up with rebranding suggestions. Let me start:

Sandy Levinson over at Balkinization has posted his srmposium review of Michael Klarman's "The Framers' Coup:" well worth a read. Sandy makes no reference to originalism in his review. But I have a feeling that the current "debate" on originalism will soon actively take up Klarman's book. Perhaps the Originalism Blog might hold its own symposium on the book as Klarman has been a strong critic of Originalism in a number of law review articles.

Once read someone who was involved in the creation of a state constitution & he thought originalism was a silly idea of how to interpret constitutions.

Though from some comments, you would think the Constitution only involved James Madison (or maybe, per another blogger's member, John Bingham), but there are many people involved in creation of constitutional text (including amendments) who are still alive. After all, many were written in Shag's lifetime.

Never seem to hear from such people in these conversations for some reason. Put aside foreign constitutions, such as South Africa, which are rather recent as a whole.